n Law, Democracy & Development - Insufficient access to substance abuse treatment centres for illicit drug users and its potential effect on a foetus : a breach of the right to access health care services

Abstract

This article will examine whether the State is in breach of section 27 of the Constitution, specifically the right to access health care services, in that it has failed to provide sufficient free of cost substance abuse treatment centres and facilities in South Africa for abusers of illicit drugs. It will be argued that as a result of this breach, the State has inadvertently aggravated another social ill, illicit drug abuse during pregnancy and consequent harm to the foetus. The article is divided into four parts. First, the legal problem will be examined in detail in order to understand the extent and severity of illicit drug use in South Africa as well as one important and under-researched consequence, the antenatal use of illicit drugs and consequent harm to the foetus. Secondly, legislative as well as other methods employed by the state to curb this issue are critically examined. The third part of the article advocates a legal framework to determine whether the State is in breach of its constitutional obligations in terms of section 27 of the Constitution. The international law counterpart to section 27, Article 12 of the International Covenant on Economic Social and Cultural Rights (1966) (ICESCR), is examined in order to unpack the contents of the State's obligation. It is argued that the state has failed to provide sufficient free of cost substance abuse treatment centres and facilities and this is in breach of its constitutional obligations to respect, protect, promote and fulfil the right to access healthcare. As a result of this breach, the State may be found liable for not exercising due diligence in preventing, punishing and investigating the harm suffered by the foetus due to its mother's use of illicit drugs during pregnancy. Finally, the article concludes with recommendations as to how the State can improve the plight of illicit drug users, with a focus on pregnant users.